The Yogurt Wars

Preliminary Injunction Granted Against Chobani's Literally False Ads Chobani, LLC v. Dannon Co., No. 16 CV 30, 2016 WL 369364 (N.D.N.Y. Jan. 29, 2016); Gen. Mills, Inc. v. Chobani, LLC, No. 16 CV 58, 2016 WL 356039 (N.D.N.Y. Jan. 29, 2016)

Yogurt manufacturers moved to enjoin Chobani's ads that touted its yogurt's all-natural ingredients and claimed that its competitors' Greek yogurts contain "bad stuff": General Mills' Yoplait Greek 100 contains potassium sorbate ("that stuff is used to kill bugs!") while Dannon's Light & Fit contains Sucralose [Splenda] ("That stuff has chlorine added to it!"). The court granted the competitors' motions for a preliminary injunction on the ground that Chobani's ads were false by necessary implication, i.e., Chobani's claims conveyed the literally false message that the challengers' yogurts were "unsafe to eat." The court rejected Chobani's contention that its "no bad stuff" claim was mere puffery -- and that its claims about its competitors' ingredients are in fact true. The court noted that the context in which claims are made matters to an advertiser's puffery defense, drawing a critical distinction between general statements and comparison claims that disparaged competitors' products. View the decisionsChobani v. Dannon and Gen. Mills, Inc. v. Chobani.

Materiality Matters

Reed Constr. Data Inc. v. McGraw-Hill Cos., 49 F. Supp. 3d 385 (S.D.N.Y. 2014), aff'd --- F. App'x ---, 2016 WL 80577 (2d Cir. Jan. 7, 2016)M

Reed, the sole competitor of defendant McGraw-Hill as national providers of construction product information, alleged that McGraw-Hill's ads, which exaggerated the comparative advantage of McGraw-Hill's platform, violated the Lanham Act. The Second Circuit affirmed summary judgment for McGraw-Hill, finding materiality was lacking where "overwhelming" evidence established that consumers did not base their decision about which platform to use on McGraw-Hill's advertising. View the decision.

Bad Faith and Attorneys' Fees Granted in "Exceptional Case"

Sleepy's LLC v. Select Comfort Wholesale Corp., No. 07 CV 4018, 2016 WL 126377 (E.D.N.Y. Jan. 11, 2016)

The court awarded statutory attorneys' fees to prevailing defendant Select Comfort because the evidence showed "substantial overtones" that the lawsuit was filed as a "competitive ploy" after a retail agreement collapsed, rather than a good-faith Lanham Act suit. The court also found support for its decision to award attorneys' fees in plaintiffs' "egregious" conduct in spoliating evidence. View the decision.

Advertising Litigation Report: January/February 2016

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